I can’t think of any possible benefit to the practice except protecting the lawyer from a malpractice suit… and it’s much easier to just have the client sign things.
No. First of all, there would be no practical reason for a lawyer to record a conversation with a client, he can take notes, and both parties have a presumption that nothing that is discussed can be the subject of any litigation. In fact, it would only be in the client’s interest, who could then hold the lawyer to any verbal contracts, such as fees or any undertakings the lawyer agreed to perform. The lawyer can’t sue a client, that’s a one-way street. What would a lawyer say to a client who wanted to record the conversation?
Second, the very existence of such a recording device would itself be a violation of confidentiality. What Catholic would confess to a priest who said “OK, I’m starting the tape now, my son”?
That’s not correct. A lawyer can sue a client.
The two types of action that come to mind are for an unpaid account, and defamation.
If the client fails to pay the lawyer’s bill, then just like any other unpaid bill, the lawyer can seek to collect by a civil action. Care has to be taken to avoid breaching solicitor-client privilege, but it can be done.
Second, one of the exceptions to the solicitor-client privilege is if the former client is publicly slagging his former lawyer’s professional advice and conduct of the case. A lawyer can in some circumstances respond in public, to defends his/her professional reputation. If the client’s misrepresentations are extremely inaccurate, there is the potential for the lawyer to bring an action in defamation.
Of course – and a third reason would be backing into his car in the parking lot. Those are not lawsuits in which a recording of a conversation in the office would shed any light in testimony. To which I addressed my remarks about the feasibility of such recordings. Recordings would not have any relevance in a client-v.-counsel action.
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Then what did you mean by saying that a lawyer cannot sue a client?
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Actually, recordings of a conversation with the client could be highly relevant to both of the hypotheticals I gave.
If there is a dispute about the terms of the retainer, such as hourly rate the lawyer would charge, number of hours the client wished to devote to the cause, and so on, a discussion between the lawyer and the client on those points could be highly relevant to a subsequent dispute about the terms of the contract.
Same if the client is slagging the lawyer for the advice given. If the client is saying “my lawyer told me to do X, and that was terrible advice,” it would be quite significant if there were a recording of the lawyer saying to the client, “Above all, I advise against ever doing X, because it could torpedo your case.”
It’s not possible to say in advance in any situation what relevance a conversation may have in a future lawsuit. However, lawyers do not record conversations with clients, for the reasons given earlier in this thread.
I have never heard of any lawyer who recorded conversations with clients. Seems like A Really Bad Idea. I have, however, heard of lawyers who, if the client insists on doing something against legal advice, will ask the client to sign a letter acknowledging that the lawyer advised against it (usually testifying in the client’s own criminal case).